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September 29, 2012

Sex offenders claim First Amendment violated by local Halloween ordinance targeting them

The Ventura County Star has this interesting article, headlined "Lawsuit seeks to block Simi Valley's Halloween sex offender ordinance," reporting on a notable (and groundbreaking?) legal action against a common local law this time of year. Here are the details:

A federal lawsuit filed Friday seeks to block enforcement of Simi Valley's new Halloween sex offender ordinance, contending it is unconstitutional.
The lawsuit alleges that the ordinance violates the First and 14th Amendments because it "suppresses and unduly chills protected speech and expression."

The suit was filed in U.S. District Court in Los Angeles by five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. They are identified only as John and Jane Does.

It's the first time one of the Halloween sex offender laws passed by a number of California cities, including Ontario and Orange, has been challenged in court, said Santa Maria attorney Janice Bellucci.

Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit, which also seeks unspecified financial damages, on behalf of the plaintiffs.

Simi Valley City Attorney Marjorie Baxter said the lawsuit is groundless.
"We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously," she said.

The Simi Valley City Council adopted the law — the only one of its kind in Ventura County — to prevent sex offenders from having contact with trick-or-treating children on Halloween. Championed by Mayor Bob Huber, a lawyer who is seeking re-election in November, the measure applies to the several dozen convicted child sex offenders who live in the city and are listed on the Megan's Law website.

The ordinance requires the offenders to post signs on their front doors saying, "No candy or treats at this residence." It also bars them from opening their doors to children on the holiday, displaying Halloween decorations or having exterior lighting on their property from 5 p.m. to midnight on Oct. 31....

The lawsuit argues that the ordinance prohibits "a discrete and socially outcast minority from expressing any publicly viewable celebration of Halloween" and "forces this group to impose a burden on their own safety and that of any person who resides with them by requiring them to turn off all exterior lighting at their residences on Oct. 31 every year."
The ordinance also publicly shames the sex offenders "by mandating that they place a large content-specific sign on their door every year," the lawsuit contends.

But Councilman Mike Judge noted at the council's Aug. 20 meeting that the ordinance was limited to registered sex offenders on the Megan's Law website, which publicly lists their identities.
"We're not branding them," Judge, a Los Angeles police officer, said. "They're already branded."

Bellucci argues that there are no reported instances of a child being molested while trick-or-treating.
According to her group's website, the organization is "dedicated to restoring civil rights for those accused and/or convicted of sex crimes."

September 28, 2012

"Crime not on presidential contest radar"

Presidents and lesser politicians have been delivered to victory more often than not for taking tough stands on crime. Yet during a year punctuated by mass shootings at a Colorado movie theater and temple in Wisconsin, crime has all but vanished from public discussion this campaign season.

In a presidential election cycle dominated by concerns for a faltering economy and unemployment, crime rated a forgettable asterisk earlier this month in a Gallup Poll, representing less than 1% of Americans who believed it was the nation's most pressing problem. "When the economy is as big a problem as it is, it kind of squashes out the others," said Frank Newport, Gallup's editor in chief....

According to polling data..., 2012 represents just one more presidential election in which the often-emotional issue of crime has ranked near the bottom of the public agenda. The last time crime rated as the top concern of the American public was in 1996, according to Gallup.

"The most important responsibility of an elected official is to provide for the safety of the people they represent, and we haven't heard much talk about that," said Jim Pasco, the FOP's executive director. "When there is the kind of violence that we have seen this summer, you do expect there to be a discussion about it," he said. "But it seems like it is the last thing on the public agenda."

Chuck Wexler, executive director of the law enforcement think tank Police Executive Research Forum, said the apparent lack of attention is "a sign of the times."

"Twenty years ago, the homicide rate was double what it is today," he said. "If we compare ourselves against ourselves, crime has declined fairly dramatically. But if we compare ourselves to countries like the United Kingdom, that's another story." There were more than 600 murders in Great Britain last year, compared to more than 13,000 in the U.S. "The gun issue is radioactive in this country for both Democrats and Republicans," Wexler said. "No one nationally has spoken about it. It's not even on the radar screen."

Long-time readers likely recall my laments that national crime and punishment issues failed to garner any significant attention in the 2004 or 2008 campaigns. Rather than curse this criminal justice darkness, I hope this weekend to do a post with timely federal crime and punishment questions that could be interesting and revealing during next week's first big presidential debate. In the meantime, I wonder if readers are inclined to complain or cheer the failure of any significant national politicians to give any real attention to these issues.

“[C]riminal justice today is for the most part a system of pleas, not a system of trials. . . . [T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012). Because of “[t]he reality [ ] that plea bargains have become so central to the administration of the criminal justice system . . . ,” Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012), the Supreme Court recently recognized that the Sixth Amendment right to counsel “extends to the plea-bargaining process. During plea negotiations defendants are entitled to the effective assistance of competent counsel.” Lafler, 132 S. Ct. at 1384 (internal citations and quotation marks omitted); see also Frye, 132 S. Ct. at 1407.

Petitioner-Appellant Tyrone Wayland Miles (“Miles”) claims that he received ineffective assistance of counsel during plea-bargaining process. He alleges that counsel advised him to reject a plea offer of six years’ imprisonment without alerting him that he was being charged with a crime that would qualify as a “third strike” under California law. He later entered an open plea and was sentenced to a three strikes sentence of twenty-five years to life in prison. Without granting an evidentiary hearing, the California Supreme Court summarily denied his state petition for a writ of habeas corpus. Following the United States Supreme Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye, we reverse the district court’s denial of Miles’s petition for habeas corpus and remand to the district court to hold an evidentiary hearing on Miles’s claims.

State judge stays Pennsylvania execution scheduled for next week

As reported in this local article, headlined "Judge stays execution of Terrance Williams," it now appears that Pennsylvania has hit a significant judicial road-block on the way to getting back to the business of executions. Here are the details:

Criticizing the prosecutor for "gamesmanship" and withholding evidence that would have likely convinced the jury not to impose a death sentence, Philadelphia Common Pleas Court Judge M. Teresa Sarmina today stayed Wednesday's execution of condemned killer Terrance Williams.

Sarmina, in a 45-minute oral opinion delivered to a courtroom packed beyond its 71-person capacity, said evidence that was withheld about the sexual proclivities of Williams' victim Amos Norwood, and the extent of the prosecution's deal with admitted accomplice Marc Draper had undermined confidence in the fairness of Williams' 1986 death sentence.

Sarmina, however, affirmed the guilty verdict against Williams in Norwood's murder. She said the District Attorney's office had the option of conducting a new penalty phase for Williams if it still wished to seek the death penalty.

Prosecutors had no comment after the judge's ruling although District Attorney Seth Williams was expected to make a public statement later today.
Terrance Williams' attorney Shawn Nolan praised Sarmina's ruling and said it is "time for the District Attorney's office to end the appeals."

The prosecutors could file an emergency challenge to Sarmina's ruling with the state Supreme Court and the state's high court could reinstate Williams' Oct. 3 execution date.
Andrea Foulkes, the assistant district attorney who prosecuted Williams in two murder trial in 1985 and 1986, could not be reached for comment....

In testimony last week before Sarmina, Foulkes insisted that she did not withhold evidence and that the information she had about the victim, a 56-year-old Germantown church volunteer who preyed on teenage boys, was nothing more than "bits and pieces."
Sarmina, however, cited Foulkes' testimony that she suspected Norwood had sex with teenage boys and had a sexual relationship with the then 18-year-old Williams.
"She was able to connect all the dots," Sarmina said. "Had a reasonable defense counsel been given all the dots, he also could have connected them."

Instead, the judge said, Williams' 1986 defense lawyer was given statements by Norwood's widow and minister that portrayed him as a kindly religious man.
"They were sanitized statements," Sarmina added.

Sarmina's decision came a day after the state Board of Pardons agreed to hear for a second time Williams' plea for clemency plea, but put off any action in apparent deference to the court in Philadelphia.
The board's action to rehear William's clemency plea reversed a Sept. 17 vote in which the panel failed to recommend that Gov. Corbett commute the killer's death sentence to life in prison without parole.

The Second Circuit has a brief sentencing opinion this morning in US v. Carter, No. 11-3605 (2d Cir. Sept. 28, 2012) (available here), which would have been huge news had it come out the other way. As resolved, the decision still seemed blog-worthy and here is how it begins:

This case reminds us of the tension in federal criminal law between two competing but
overlapping systems for imposing a sentence. In most cases, a sentencing court computes the
relevant range under the U.S. Sentencing Guidelines, now advisory under the teaching of United
States v. Booker, 543 U.S. 220 (2005), before making its own determination of an appropriate
punishment after considering the general sentencing factors in § 3553(a), including the “parsimony”
provision that a sentence must not be “greater than necessary” to serve appropriate sentencing
objectives. 18 U.S.C. § 3553(a). For certain criminal offenses, however, Congress has created a
“mandatory minimum” term of imprisonment — a blunt directive that may require judges to give
sentences that they consider unduly punitive. See Dorsey v. United States, 132 S. Ct. 2321, 2326–29
(2012) (describing the development of and relationship between these two sentencing regimes).

The question presented in this appeal is whether a statutory mandatory minimum provision
binds a federal sentencing court when the relevant statute does not specify that it overrides the
“parsimony” provision in § 3553(a). For the reasons stated below, we hold that a statutory
mandatory minimum binds a sentencing court by explicitly providing a sentencing floor. The
relevant statute need not specify that it overrides the “parsimony” provision or other general
sentencing considerations in § 3553(a). Therefore, we affirm the judgment of the District Court.

"A Quantity-Driven Solution to Aggregate Grouping under the U.S. Sentencing Guidelines Manual"

The title of this post is the title of this new paper by Kevin Bennardo now available via SSRN. Here is the abstract:

The United States Sentencing Guidelines Manual mandates the grouping of many multiple counts of conviction on an aggregate basis. In these instances, the Guidelines aggregate a specific quality of the multiple counts — often the amount of drugs or money — and determine the punishment based on the aggregated quantity.

This article first undertakes a review of the purposes of grouping under the Guidelines and concludes that grouping under the Guidelines’ other grouping provisions should precede grouping on an aggregate basis in order to minimize the influence of prosecutorial charging decisions. Second, the article analyzes the text, commentary, and effect of the aggregate grouping guideline and concludes that aggregate grouping is only appropriate when the offense level determination is based primarily on quantity or some other aggregable quality of the offense. Next, the article formulates a mathematical ratio by which to test whether the offense level for an individual offense guideline is determined based primarily on an aggregable or non-aggregable quality of the offense. The ratio is then applied to every offense guideline in the Manual as well as to the distribution of each controlled substance and listed chemical. This data is reproduced in a series of appendices. The article highlights anomalies in the data and identifies the specific offense guidelines that are improperly either subjected to or excluded from aggregate grouping under the current scheme. Lastly, in an appendix, the article sets forth the text of a proposed revised aggregate grouping guideline.

September 27, 2012

A helpful reader altered me to this (first?) significant ruling by Florida appeals court concerning the application of the Supreme Court's Miller holding to long final cases. Here are the basics from the starting portion of the extended opinion in Geter v. Florida, No. 3D12-1736 (3d Dist. App. Sept. 27, 2012) (available here):

On April 30, 2003, Geter was convicted of first-degree murder and sentenced to life imprisonment as a juvenile offender on June 23, 2003. On direct appeal, this Court affirmed Geter’s conviction and sentence on October 13, 2004. Geter’s three subsequent postconviction motions were denied by this Court without discussion, on October 28, 2005, September 2, 2009, and May 12, 2010, respectively. Geter now files this 3.800 motion seeking postconviction relief on the basis of the recent United States Supreme Court decision in Miller v. Alabama, 132 S. Ct. 2455 (2012). The issue before this Court is whether Miller applies retroactively to postconviction proceedings involving a juvenile homicide offender whose conviction of first-degree murder and sentence to life imprisonment was final prior to the Miller decision. We conclude that under Florida law, Miller cannot be applied retroactively to Florida postconviction proceedings where the life sentence was already final when Miller was rendered. Accordingly, we affirm the circuit court’s order that denied Geter’s motion for postconviction relief.

Some related posts on Miller and its potential impact in PA and eslewhere:

Thanks to How Appealing, I see via this AP article that the "Arkansas Supreme Court on Thursday upheld a proposed ballot measure that, if successful, would make the state the first in the South to legalize medical marijuana." Specifically, that court "rejected a challenge by a coalition of conservative groups who had asked the court to block the proposed initiated act from the November ballot or order the state to not count any votes cast on the issue." Here is more about the ruling and its import:

Arkansas will be the first Southern state to put the medical marijuana question to voters. Seventeen states and the District of Columbia have legalized it in some fashion. Massachusetts voters are also expected to vote on the issue this fall, while the North Dakota Supreme Court ruled a medical marijuana initiative can't appear on that state's ballot.

The conservative coalition argued that Arkansas' 384-word ballot question doesn't accurately describe other consequences of passing the 8,700-word law, including a provision that would allow minors to use medical marijuana with parental consent.

Justices disagreed and said the proposed law is fairly summarized in the question that will appear on the ballot. "Here, after reviewing the ballot title of 384 words, we conclude that the title informs the voters in an intelligible, honest and impartial manner of the substantive matter of the act," the ruling said....

Medical marijuana has never come before voters in the South partly because of the difficulty of getting such initiatives on the ballot. And conservative legislators throughout the region have not backed the efforts. The Washington-based Marijuana Policy Project has provided most of the funding for the campaign in Arkansas, contributing $251,000 to the effort.

Officials with the group said they stepped in after polling showed strong support for the measure in Arkansas. Group leaders also cite a "symbolic" value in passing a medical marijuana law in the South. "I think it's a sign that marijuana policy reform is an idea that is coming of age now across the nation, rather than just in the states where we've seen it so far," said Morgan Fox, the group's communications director. "It's really an important moment."

Gov. Mike Beebe, who is opposed to the proposal, told reporters on Thursday he doesn't believe the state's voters would legalize medical marijuana. Beebe said he's asked for an estimate of how much it will cost the state to regulate the dispensaries if the measure passes. "If I understand what I think I understand about it, if it passes, it's going to require a whole of administration from the health department," Beebe said. "I don't know where we're going to get it from."

The full unanimous ruling from the Supreme Court of Arkansas is available at this link.

New Amnesty International report assails California's use of solitary confinement

As reported in this Los Angeles Times piece, which is headlined "Report decries suicides, isolation cells in California prisons," a new report released today by Amnesty International details problems with California's use of segregated isolation. Here is part of the story behind the report:

California has more inmate suicides than any other state, a total that is rising even as its prison population falls. Almost half those deaths occurred in the system's segregation cells.

According to an Amnesty International report to be released Thursday, conditions within the state's security housing "breach international standards on humane treatment."

"It would crush you," said Tessa Murphy, an Amnesty International observer who was given unusual access to the isolation units at Pelican Bay and two other California prisons last November.

But California officials rebutted Amnesty's findings, insisting the state's security units "follow the national standard. They are clean. They are secure," said Terri McDonald, who is in charge of prison operations for the California Department of Corrections and Rehabilitation.
She cited the constant monitoring of those units — the result of federal lawsuits over poor medical and mental healthcare in the state system. "We have not been inhumane," McDonald said.

There currently are more than 3,100 inmates living in California's maximum security segregation units, and thousands more in similar administrative segregation units.
The windowless, 7- by 12-foot cells at Pelican Bay exceed international space standards for a single inmate. The only way in or out is through a perforated steel door that looks out onto a concrete wall.

Except for an unknown number of prisoners who have cellmates, Amnesty International reported that there was no contact with other inmates and little interaction with the guards — who monitor them via closed circuit cameras, open doors with remote switches and push food through slots.

Segregated prisoners do not have access to rehabilitation programs, the report said. They are permitted to exercise 90 minutes a day, inside a concrete enclosure through which a slice of sky is visible 20 feet overhead.
Group therapy consists of inmates in individual holding cages lined up before a therapist; physicians examine ill inmates through the closed cell door.

According to state officials, the average stay in solitary confinement is 6.8 years — although California is set to begin a trial program next month that would allow compliant inmates out of isolation after four years.
But Amnesty International reported that at least 500 prisoners have spent more than 10 years in isolation. Seventy-eight inmates have been segregated for more than 20 years.
"There is no question … the conditions are among the worst in the nation," Murphy said.

The full AI report is titled "USA: The edge of endurance: Prison conditions in California's security housing units," and it is available via this link.

The title of this post is the headline of this notable commentary discussing the two big California sentencing inititative coming before voters this fall. Here is how the piece gets started:

Don’t believe the cable-news chatter about California being some bastion of weak-tea liberal values. When it comes to our criminal-justice system — and its penchant for mandatory-sentencing guidelines, gang enhancements and the death penalty — the Golden State is as red meat as they come.
“It’s remarkably out of sync with the rest of the country,” contends University of the Pacific McGeorge School of Law professor Michael Vitiello.

Which is why two initiatives on this November’s ballot are rustling some eyebrows. The impressively funded, broadly supported Proposition 36 aims to modify a three-strikes law that voters overwhelmingly adopted way back in 1994. Specifically, Prop. 36’s authors want to make sure that anyone going away for 25 years to life on a third-strike conviction is being prosecuted for a serious or violent offense rather than for stealing videotapes....

Proposition 34, meanwhile, is taking on the death penalty itself — not because it’s unethical for a government to execute its own citizens, but because it’s too damn expensive. A study last year by former prosecutor and federal judge Arthur L. Alarcon says it cost California roughly $4 billion to snuff out 13 death-row inmates since voters reinstated capital punishment in 1978. Prop. 34 promises to save hundreds of millions of dollars a year, and put a chunk of that toward solving more murders and rapes.

Likewise, Prop. 36 makes its case on largely pragmatic grounds, with proponents dangling the juicy carrot of $70 million to $90 million in projected annual savings if the measure passes.

With two ballot initiatives that fly in the face of the accepted “tough on crime” paradigm, the question becomes whether California is experiencing something of a sea change when it comes to its counterintuitively hard-assed stance on crime and punishment.

The short answer is: nah.
“I see only a weak trend, not one that’s going over a cliff,” observed Vitiello, an expert on sentencing reform.

Relatedly, last week the legal newspaper The Recorder had this lengthy article on Prop. 36 under the headlined "Third Try at Shrinking the Strike Zone Likely to Succeed."

September 26, 2012

Linking state pot initiatives to prior push back against Prohibition

Jacob Sollum has this new piece on state marijuana reform efforts at Reason.com under the headline "The Marijuana Rebellion: State ballot initiatives aimed at legalizing pot pose a new challenge to prohibition." The piece begins with a reminder of state-level rejections of alcohol prohibition, as well as the latest polling numbers on pot initiatives:

By the time the 21st Amendment ended national alcohol prohibition in December 1933, more than a dozen states had already opted out. Maryland never passed its own version of the Volstead Act, while New York repealed its alcohol prohibition law in 1923. Eleven other states eliminated their statutes by referendum in November 1932.

We could see the beginning of a similar rebellion against marijuana prohibition this year as voters in three states — Washington, Colorado, and Oregon — decide whether to legalize the drug's production and sale for recreational use. If any of these ballot initiatives pass, it might be the most consequential election result this fall, forcing both major parties to confront an unjust, irrational policy that Americans increasingly oppose.

With six weeks to go before Election Day, Oregon's Measure 80, which would establish a commission charged with licensing growers and selling marijuana through state-run stores, seems to be in trouble. In a SurveyUSA poll this month, only 37 percent of respondents said they planned to vote yes, while 41 percent were opposed and 22 percent were undecided.

But the other two initiatives are polling strongly. According to a SurveyUSA poll conducted two weeks ago, 57 percent of Washington voters favor Initiative 502, which would authorize private pot stores regulated by the state liquor commission; only 34 percent were opposed. A SurveyUSA poll completed on September 12 found that 51 percent of Colorado voters support Amendment 64, which would allow home cultivation of up to six plants and create a licensing system for growers and retailers; 40 percent were opposed.

Neither of these measures is a sure thing by any means. California's Proposition 19, a marijuana legalization measure that was ultimately supported by 47 percent of voters in November 2010, polled above 50 percent in several surveys. But while the SurveyUSA approval number for Proposition 19 peaked at 56 percent in April 2010, dropping to 47 percent by September, support for the Washington and Colorado initiatives appears to be growing.

A review of the year that was 2011 in federal sentencing

The US Sentencing Commission has this week released this basic report "Overview of Federal Criminal Cases, Fiscal Year 2011." Though there is no new remarkable data in this report, this overview provides an effective reminder of what the (still growing) massive federal sentencing system is all about. Here is part of the start of the report:

The United States Sentencing Commission received information
on 86,361 federal criminal cases in which the offender was
sentenced in fiscal year 2011. Among these cases, 86,201
involved an individual offender and 160 involved a corporation or
“organizational” offender....

The vast majority of the cases reported to the
Commission involve an individual defendant. Over
the last decade, the number of these cases has
increased every year except one. In fiscal year
2011, the increase was 2.7 percent over the number
of such cases in fiscal year 2010. Cases involving
immigration, drugs, fraud, or firearms continue to be
the most common federal criminal cases and make up
the vast majority of federal felonies and Class A
misdemeanors. These four crime types have been
the most common for the last decade. In fiscal year
2011, these crimes accounted for 83.0 percent of all
cases reported to the Commission.

Immigration cases continued to be the fastest growing
segment of cases in the federal system. In fiscal year
2011, there were 29,717 immigration cases reported
to the Commission, an increase of 1,213 cases from
the prior fiscal year. In the last ten fiscal years, the
number of cases of this type has increased by 153.2
percent, while the total federal caseload has grown by
33.9 percent....

The number of drug cases has been relatively stable over the last
five fiscal years, but because of the overall increase in federal
cases, the portion of the criminal caseload attributable to those
cases decreased to 29.1 percent in fiscal year 2011.... Firearms cases were 9.2
percent of the caseload in fiscal year 2011, a decrease of 2.4
percentage points from five years ago. The proportion of fraud
cases over that period also was relatively stable at 9.8 percent in
fiscal year 2011, but has declined slightly from 10.7 percent in
fiscal year 2007....

The vast majority of convicted defendants plead guilty. In fiscal
year 2011, more than 96 percent of all offenders did so, a rate that
has been largely the same for ten years. When offenders pled
guilty, 44.0 percent received a sentence below the applicable
sentencing guideline range, either at the request of the
government, at their own request, or initiated by the court.
Approximately 61 percent (61.5%) of these below range sentences
were requested by the government, usually because the defendant
had provided substantial assistance to the government or had
agreed to have his or her case handled as part of an early
disposition program.

A little simple division brings a little more perspective to these number: with more than 86,000 federal sentencings of individuals in FY2011, the system averaged over 1,650 sentencings per week and thus more than 330 federal sentencing per federal work-day. Put even more starkly, in the 15 minutes it took me to put together this post, on average 10 more persons were sentenced by the federal district judges.

"Juvenile Offenders in Limbo under Outdated State Laws"

The title of this post is the headline of this effectivenew report from the Juvenile Justice Information Exchange concerning some state struggles following the Supreme Court's recent Eighth Amendment rulings in Graham and Miller. Here are excerpts:

More than two years after U.S. Supreme Court decisions started throwing out mandatory death and life sentences for minors, judges in Washington, Illinois and dozens of other states still lack guidance on what to do with juveniles past and present convicted of murder and some other serious felonies.

“Courts are uncomfortable in trying to figure out what ‘life’ means in terms of years,” said Kimberly Ambrose, senior law lecturer at the University of Washington School of Law. She represented Guadalupe Solis-Diaz at the state’s Court of Appeals, arguing against a 92-year sentence he’s serving for six counts of first-degree assault and other charges for his role in a drive-by shooting. The then 16-year-old Solis-Diaz fired into a crowd in Centralia, Wash., in 2007, though did not injure his target or anyone else.

It’s not clear in Washington if those 92 years are equivalent to what the U.S. Supreme Court calls “life” sentences. The federal high court has definitively thrown out state sentencing laws that mandate life without parole for juveniles. Beginning with the 2005 Roper v. Simmons case and more recently with Graham v. Florida in 2010 and Miller v. Alabama in 2012, the court says that juveniles are not yet fully mentally developed, are less culpable and more capable of reform. Therefore, lower court judges must consider those and other mitigating factors when sentencing juveniles for both homicide and non-homicide offenses.

Solis-Diaz’ counsel at his original sentencing failed to mention that U.S. Supreme Court trend. That omission, said the state appeals court, was one of several mistakes that contributed to their decision this month to throw out Solis-Diaz’ 92 years, on grounds of ineffective counsel. “This is the first life-equivalent case to come before a Washington appellate court,” said Ambrose, speaking of non-homicide offenses.

But the court also noted it would not opine on any other sentence for Solis-Diaz. “The legislature is the appropriate body to define crimes and fix punishments. To the extent that Graham suggests that an opportunity for parole must be available for juvenile offenders convicted of non-homicide offenses, only the Legislature has the authority to amend the SRA [Sentencing Reform Act] to allow for such remedy,” the opinion reads....

Many judges are grappling with how to amend their current laws to comply with the U.S. Supreme Court rulings on juvenile sentences. Some state legislatures have yet to update laws to comply with the two-year-old Graham case. And most state legislatures have been closed since the June, 2012 Miller decision, so have had no chance to start thinking about it. Thus judges dealing with juveniles convicted of murder must figure out if it would apply to juvenile offenders sentenced before it, and how to handle appeals, all without legislative guidelines....

More than 100 people have been sentenced to life without chance of parole in Illinois for crimes committed as minors, according to a 2010 report by the National Conference of State Legislatures. Nationally, there are more than 2,500 juvenile offenders who have received this sentence in the states that did or do allow it, according to The Campaign for Fair Sentencing of Youth, an advocacy group....

Michigan’s Supreme Court declined to settle retroactivity in its state this month. Attorney General Bill Schuette asked the Court to rule out retroactivity on the life sentence of a man convicted of participating in an armed robbery as a 16-year-old. Instead, the court remanded the case for resentencing.

The Washington Court of Appeals ruling referenced above was announced in this "unpublished" state habeas opinion handed down last week. In addition, this local article, headlined "Rebuffed by Michigan Supreme Court, Attorney General Bill Schuette presses forward to keep juvenile lifers behind bars," provides more background on the efforts by the Michigan AG to prevent the Miller ruling from applying retroactively. It starts this way:

Attorney General Bill Schuette has lost his bid to have the state Supreme Court halt resentencing of juvenile lifers, so he is turning to the next best thing. Schuette will attempt to join a case currently before the state Court of Appeals, where judges will soon hear a request to reconsider the sentence of a man serving a mandatory life term for a killing at age 15.

The battle stems from a U.S. Supreme Court ruling in June that found mandatory life sentences for minors are unconstitutionally cruel. Schuette claims the ruling should not be retroactive. “This is the best opportunity we’re going to have to get an answer on retroactivity,” said Joy Yearout, spokeswoman for Schuette. “The decision will still be binding on all lower courts.”

Schuette argues the new mandate that mitigating circumstances, including age, must be considered before sentencing is not a “watershed event,” but a mere procedural change affecting only current and future cases.

The state Supreme Court on Sept. 1 rejected Schuette’s request to immediately settle the retroactivity issue in a 1993 murder case involving 16-year-old Cortez Davis, now 35. Instead, the court sent the case back to Wayne County Circuit Court for consideration, possibly forcing a long wait if the ultimate decision is appealed by either side.

How might we define, assess and analyze judicial sentencing wisdom?

The question in the title of this post is prompted by this intriguing looking new paper I came across on SSRN, titled "Judicial Wisdom: An Introductory Empirical Account and Research Agenda." The paper is by Jeremy Blumenthal and Daria Bakina, and here is the abstract:

We present the first empirical analysis of “judicial wisdom”: what it means to be a “wise judge.” We surveyed 40 federal judges; half listed characteristics of a “wise” judge and, to compare, half listed characteristics of an “excellent” judge. The factor models of judicial wisdom and of judicial excellence demonstrate the two concepts’ distinct nature. Judicial wisdom seems comprised of three traditional wisdom factors and one factor specific to the judicial role. We discuss the substantive models of judicial “wisdom” and “excellence,” and legal and policy implications, including the possibility of teaching judicial wisdom. We also raise directions for future research.

September 25, 2012

The Huffington Post via this new entry headlined "Tom Tancredo Backs Legal Weed: 'Marijuana Prohibition Has Failed Us'," has alerted me to another prominent conservative voice speaking out in support of state marijuana reform efforts. Tom Tancredo is a former Republican congressman who is now endorsing Colorado's ballot initiative to legalize marijuana. Here is part of his explanation why in this commentary appearing in the Colorado Springs Gazzette:

Exactly 80 years ago, the people of this great state passed a ballot initiative declaring an end to the misguided big-government policy experiment that was alcohol prohibition. One year later, the federal government followed.

This November, the voters of Colorado have the opportunity to repeat history.
On the ballot is Amendment 64, an initiative that would end marijuana prohibition in the state and regulate the production and sale of the substance.

In many ways, marijuana prohibition is very similar to alcohol prohibition. Nowhere is this more apparent than in their impact on public safety.

In the 1920s, alcohol prohibition led to the widespread proliferation of violent criminal organizations who corrupted politicians and law enforcement officials to illegally peddle booze to otherwise law-abiding citizens.
Similarly, by keeping marijuana illegal for the last 75 years, we have created a black market that helps fuel some of the most dangerous terrorist organizations in the world....

I am endorsing Amendment 64 not despite my conservative beliefs, but because of them. Throughout my career in public policy and in public office, I have fought to reform or eliminate wasteful and ineffective government programs. There is no government program or policy I can think of that has failed in such a unique way as marijuana prohibition.

Our nation is spending tens of billions of dollars annually in an attempt to prohibit adults from using a substance objectively less harmful than alcohol.
Yet marijuana is still widely available in our society. We are not preventing its use; we are merely ensuring that all of the profits from the sale of marijuana (outside the medical marijuana system) flow to the criminal underground.

Regardless of what ultimately happens on the federal level, we have an opportunity to stop pouring money into a failed system in Colorado. According to the Colorado Center on Law and Policy, we current spend anywhere from $25 to $40 million dollars per year arresting, citing, processing, and prosecuting marijuana offenders throughout the state. A recent report from the Colorado Center on Law and Policy found that savings achieved through eliminating these law enforcement costs, combined with increased tax revenues generated from the legal production and sale of marijuana, would net the state $60 million in the first year alone.

In addition to the economic and public safety arguments for ending marijuana prohibition, I also support Amendment 64 for a much broader, philosophical reason.
Marijuana prohibition is perhaps the oldest and most persistent nanny-state law we have in the U.S. We simply cannot afford a government that tries to save people from themselves. It is not the role of government to try to correct bad behavior, as long as those behaviors are not directly causing physical harm to others....

Across the board, our current system of marijuana prohibition has failed. It has failed to protect our kids from drug dealers pushing other, far more dangerous drugs, it has failed to keep our borders safe, and it has failed to use taxpayer dollars in the most responsible and efficient manner possible. It is time to try something new.

Report from Council of State Governments indicates reduced recidivism in many states

I always enjoy reporting good crime and punishment news; I am thus pleased to highlight this press release from The Council of State Governments Justice Center’s National Reentry Resource Center discussing findings that "a number of states [are] reporting significant reductions in recidivism." The press release provides a summary of this policy brief, including these highlights:

The states profiled in the report show significant declines in their three-­year recidivism rates based on data tracking individuals released from prison in 2005 and 2007. Texas and Ohio reported reductions of 11 percent, while the Kansas rate fell by 15 percent and Michigan’s rate dropped by 18 percent. Incorporating data through 2010 (and in some cases, through 2011), the report provides the most recent multi-state information available on recidivism....

US Senator Rob Portman (R, OH), a co-author of the Second Chance Act, applauded the states, including Ohio, for their accomplishments. “Second Chance Act programs, in collaboration with faith-based and community organizations and local reentry coalitions, have a proven record of helping inmates turn their lives around, and I applaud their continued good efforts to reduce recidivism. Encouraging people released from prison to become productive members of society not only strengthens communities, but also reduces the burden on taxpayers who shoulder the costs associated with incarceration.”

The brief, “States Report ReducAons in Recidivism,” highlights strategies that leaders in several states credit with helping drive down recidivism:

• In Ohio, state policymakers standardized the use of a validated risk assessment instrument to focus limited treatment and supervision resources on those individuals assessed at the highest risk for reoffending.

• In Kansas, state leaders awarded performance-based grants to community corrections agencies, partnered with local communities where recidivism rates were highest to improve post-release supervision, and enhanced housing and workforce development services to beaer meet the needs of people coming out of prison.

• Michigan officials invested heavily in the state’s Prisoner Reentry Program, prioritizing funding for housing, employment, and other transition support services in order to provide the most effective community-based programming for released individuals.

New poll suggests death penalty repeal has a chance on California ballot

This new San Francisco Chronicle piece, headlined "Death penalty repeal close in poll," reports that the latest polling shows a close contest for the California ballot initiative calling for repeal of the state's death penalty. Here are the details:

California voters are closely divided on a November ballot measure to repeal the state's death penalty law, with significant differences in support among regions and age groups, a new Field Poll reports.

The survey found that Proposition 34, which would make life in prison without parole the maximum punishment for murder, was opposed by 45 percent of likely voters and favored by 42 percent, with 13 percent undecided. The results amounted to a statistical tie, since the poll's margin of error was 4.3 percentage points.

The poll, released Tuesday, was conducted Sept. 6-18 among a random sample of 468 voters....

Prop. 34 will be California's first vote on capital punishment since 1978, when a 71 percent majority approved expansion of a death penalty law that had been passed the previous year over Gov. Jerry Brown's veto.

Backers of the Nov. 6 measure are focusing on the economic impact of the death penalty, citing studies that found the state spends as much as $184 million a year more than it would if the maximum sentence were life without parole. Prop. 34 would transfer $100 million over four years to law enforcement programs to solve murder and rape cases.

The new poll found that Prop. 34 was supported by Democrats, 50-37 percent, and even more strongly by unaffiliated and third-party voters, 54-33 percent, but opposed 23-65 percent by Republicans.

Residents of coastal counties favored the measure 45-41 percent, within the poll's margin of error, but inland residents opposed it 34-55 percent. The Bay Area provided the strongest regional support, 57-35 percent.

Men were evenly split, while women narrowly opposed the measure. Younger voters were about equally divided, but those ages 50 to 64 opposed Prop. 34 by 39 to 51 percent, and voters over 65 opposed it 38 to 46 percent.

Not much for sentencing fans (or Rubashkin supporters) in latest SCOTUS cert grants

As reported here by SCOTUSblog, the "Supreme Court, preparing to open a new Term next Monday, on Tuesday granted review of six new cases." Disappointingly, though the Court did take up a Fourth Amendment blood testing issue concerning drunk drivers in Missouri v. McNeely, none of the other cases I noted in this recent post are on the grant list. There is also an notable IFP grant in Millbrook v. US concerning the federal government's immunity in lawsuit by a federal prisonder subject to sexual assault by three guards.

A long list of cases in which cert was denied will not be released until next Monday. In all likelihood, the Rubashkin case will be on that list. If so, any and everyone aggrieved by the prosecution and sentencing in Rubashkin will need to turn their attention and energies toward a 2255 petition (or, I suppose, a clemency application).

"What Happens When the Amish Go to Prison?"

The title of this post is the headline of this recent Slate piece, which is especially timely in the wake of last week's high-profile convictions of a large group of Amish beard-cutters on federal hate-crime charges. Here is how the piece starts:

Sixteen members of a breakaway Amish sect were convicted of hate crimes in Ohio on Thursday. The jury found them guilty of violently shaving the hair and beards of disfavored members of the community, and they now face up to 20 years in prison. How do American prisons accommodate the old-fashioned religious practices of Amish people?

They don’t, for the most part. State and federal prison systems don’t have special regulations for the tiny number of Amish serving extended sentences, many of them for sex offenses. The Amish reject most modern technology and dress. In prison, however, their cells have electric lighting and climate control, they wear orange jumpsuits, and they are transported between the prison and the courthouse in vans, just like other inmates. Prison administrators generally require prisoners to keep their beards trimmed, but wardens sometimes allow exceptions for religious reasons.

U.S. prisons are required to accommodate religious beliefs under the Religious Land Use and Institutionalized Persons Act, but inmates’ religious freedoms are tempered by security and cost concerns. Striking this balance has proven challenging for judges. In the case of facial hair, for example, courts have struck down outright beard bans, but agreed with wardens that excessively long or unkempt facial hair prevents guards from quickly identifying inmates. Prisoners who require special meals have also met with mixed responses. An inmate can demand a halal meal, but it is often just the prison’s vegetarian meal, because the facility refuses to pay the added expense of halal butchering.

Amish inmates who are forced by the state to use electricity or wear brightly colored clothing aren’t violating their religious beliefs in quite the same way as, for example, an Orthodox Jew who is fed non-kosher food. Amish are allowed to use modern technology under certain circumstances: Amish farmers often rent lighted stalls at farmers’ markets, and members of liberal communities hire drivers to transport them to supermarkets for weekly shopping. The prohibition has more to do with excessive engagement with modern technology. Amish people are not supposed to wire their homes or own automobiles, because those behaviors might distract them from the values of community, humility, and simplicity, and violate what they view as one of the Bible’s most central commandments: “Be not conformed to this world.”